92 Decision Citation: BVA 92-00307
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-36 564 ) DATE
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THE ISSUES
1. Whether compensable evaluations for a left ankle
fracture and a gunshot wound scar of the right forearm are
protected under 38 U.S.C. 110.
2. Entitlement to an increased (compensable) evaluation for
a gunshot wound scar of the right forearm and an increased
evaluation for post-traumatic stress disorder, currently
rated 30 percent disabling.
3. Entitlement to an earlier effective date for the grant
of service connection for post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARING ON APPEAL
The appellant, R. Sweisford, R. Wilson, and M. Longmire
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from January 1966 to
January 1969 and from December 1984 to June 1989. He
reentered active duty in January 1991. By rating action
dated in June 1990, the Regional Office, Albuquerque,
New Mexico, granted service connection for post-traumatic
stress disorder effective in November 1989 and assigned a
10 percent rating for that condition. It was indicated that
the service-connected left ankle fracture and gunshot wound
scar of the right forearm had each been rated 10 percent
disabling from January 1969 to December 1984. It was
indicated that the evidence was insufficient to evaluate
those conditions from December 1984 to November 1989 when
each condition was rated noncompensable.
In June 1990 the veteran submitted a notice of disagreement
with the above rating action. It was maintained that the
10 percent evaluations for the left ankle fracture and
gunshot wound scar of the right forearm should be protected
under 38 U.S.C. 110 since the ratings had been in effect for
more than 20 years. The veteran also disagreed with the
10 percent rating assigned for the post-traumatic stress
disorder and the effective date of the grant of service
connection for that condition. He was sent a statement of
the case in November 1990. A hearing on appeal was
conducted in January 1991. The substantive appeal was
received in February 1991. The evaluation for the veteran's
psychiatric condition was later increased to 30 percent.
The veteran indicated that he wished a still higher rating
for that condition. The case was received at the Board in
July 1991. The veteran is represented by the Paralyzed
Veterans of America, Inc., and that organization submitted
additional written argument to the Board in August 1991.
The case is now ready for appellate review.
The veteran indicated in his substantive appeal that he
wished to claim service connection for a right shoulder
condition as secondary to the service-connected gunshot
wound of the right forearm. This matter is not in an
appellate status and is referred to the regional office for
appropriate action.
REMAND
The record reflects that the veteran submitted a claim for
service connection for a psychiatric condition in May 1971.
By rating action dated in June 1971 service connection for a
psychiatric condition was denied by the regional office on
the basis that the only psychiatric condition present was a
personality disorder. The veteran appealed from the
decision and was issued a statement of the case. However,
he did not perfect his appeal.
In November 1989 the veteran submitted a claim for service
connection for post-traumatic stress disorder. As indicated
previously, by rating action dated in June 1990, service
connection was granted for post-traumatic stress disorder,
effective from November 1989.
The Board notes that the statement of the case that was sent
to the veteran in November 1990 does not discuss the prior
denial of the veteran's claim for service connection for a
psychiatric condition and the effect of that denial on his
current claim for an earlier effective date for the grant of
service connection for post-traumatic stress disorder.
The record also reflects that the veteran was scheduled for
a VA examination in February 1991 (examinations by
orthopedic and neurological specialists for his right
forearm condition and a board of psychiatrists). However,
since he had reentered active duty in January 1991, he was
unable to report for the examination. The record is not
clear as to whether he remains on active duty.
In view of the aforementioned matters, findings and fact and
conclusions of law are being deferred pending a REMAND for
the following action:
1. The veteran should be contacted and
asked whether he remains on active duty.
If he has been released from active
service, his service medical records
pertaining to his current period of
active duty should be obtained. In
addition, he should be afforded
examinations by specialists in
orthopedics, neurology and psychiatry in
order to determine the current nature and
severity of his right forearm condition,
right shoulder condition and psychiatric
disorder. All indicated special studies
should be conducted. The claims file is
to be made available to the examiners for
review.
2. The case should then be reviewed by
the regional office. If any denial is
continued, to include the issue of
service connection for a right shoulder
disability on a secondary basis, the
veteran and his representative should be
sent a supplemental statement of the case
and be afforded the appropriate time in
which to respond. The supplemental
statement of the case should include
information about the prior denial of his
claim for service connection for a
psychiatric condition, the laws and
regulations concerning the finality of
prior final rating actions and a
discussion of the effect of the prior
denial on his current claim for an
earlier effective date for the grant of
service connection for post-traumatic
stress disorder.
When the above action has been completed the case should be
returned to the Board for further appellate consideration,
if otherwise in order. No action is required of the veteran
until he receives further notice. The purpose of this
REMAND is to obtain clarifying data and also to ensure that
the veteran shall have been afforded due process of law.
The Board intimates no opinion as to the disposition
warranted in this case pending completion of the requested
action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JAMES R. ANTHONY
WAYNE M. BRAEUER
*38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A),
recodified in 1991) permits a Board of Veterans' Appeals
Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting
assignment of an additional Member to the Section when the
Section is composed of fewer than three Members due to
absence of a Member, vacancy on the Board or inability of
the Member assigned to the Section to serve on the panel.
The Chairman has directed that the Section proceed with the
transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
Under 38 U.S.C. § 7252 (1989) (formerly § 4052, recodified
in 1991), only a decision of the Board of Veterans' Appeals
is appealable to the United States Court of Veterans
Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal.